The breakdown of a marriage is a stressful time, made even more difficult by having to navigate the legal process of getting a divorce.
How to divvy up assets such as a house, a car, bank accounts and who gets custody of the children, or even the family pet can get very complicated and often nasty. With that in mind, here are some of the most frequently asked questions lawyers get asked:
What are the grounds for divorce?
In Canada, you must show the marriage has broken down and there is no hope of reconciliation. There are two ways to prove this: “no fault” divorce, where both parties agree to dissolve the marriage; and “for fault” divorce, where one party applies for divorce alleging adultery, or either mental or physical abuse.
Regardless of which route you choose, you and your spouse still need to have been separated for a year before a court will grant your divorce.
What is an “uncontested” divorce?
Also called a “sole” or “desk” divorce occurs when both spouses agree to the breakup, but only one fills out the official divorce application and the other doesn’t challenge any of the grounds for divorce.
Do I need to appear in court?
Not always. If uncontested, everything can be handled by a lawyer or a law clerk. You can even do the whole thing online using numerous divorce websites. You will, however, need to appear in front of a judge if there are allegations of adultery or abuse and you or your ex is challenging it.
Am I married if we live common-law long enough?
No, but you are entitled to many of the same rights as married couples. The Canadian government confers common-law relationship status on couples that have been living together for at least 12 consecutive months without any prolonged absences. This means that common-law partners can share many federal benefits.
In British Columbia, common-law couples that have been together for at least two years are treated like they’re married in terms of being able to share benefits such as health insurance, pensions, property, inheritance and debts. Common-law partners are also on the hook for things like spousal support.
How much does it cost?
Divorce fees vary across Canada. In Nova Scotia, an uncontested divorce application costs $200 to file, while in Ontario the same process (referred to as a “simple” divorce) costs $167. In Quebec the fee is $176, while filing your divorce application in Alberta and B.C. costs $210.
What is the difference between annulment and divorce?
A divorce is the process of ending a legal marriage. An annulment is the act of ending an invalid marriage, which can be ruled null and void due to improper age (too young), or mental capacity of one, or both, of the spouses. A marriage can also be annulled if one of the spouses had not been legally divorced prior to getting remarried.
What is a separation agreement?
This is a legal document created between two spouses at the time of their separation and witnessed by a legal professional such as a lawyer or notary. The contract establishes each party’s rights on issues such as child custody, spousal support, property, savings, pensions, inheritances, and debts.
Can I get a divorce in a different province than the one I was married in?
Yes. As long as you have resided in your current province for at least a year, and your marriage is valid under the laws of the province, territory, or country in which you were originally married, then you can be granted a divorce in a different province.
Do both parties have to agree on a divorce?
No. If only one spouse seeks a divorce that is enough to prove a breakdown in marriage has occurred. A divorce will likely be granted faster if both parties are in agreement, but it does not have to be mutual.
How long does it take to get a divorce?
Under special circumstances it’s possible to get a divorce within 12 months (in cases of extreme mental or physical abuse), but most divorces are not granted until the spouses have spent at least a year apart. If the couple has been separated for at least a year and nothing in the application is being contested, then a divorce certificate can usually be obtained within six months.
Does the mother automatically get custody?
No. The parent who has been the primary caregiver usually gets custody, which oftentimes is the mother. In same-sex marriages, custody tends to be more complicated, but the courts will often make their determinations by keeping in mind what is in the best interest of the child.
Can you get a divorce from a “civil union”?
No, because it’s not the same as a marriage. Civil unions (only recognized in the province of Québec), however, can still be dissolved by a court order or by a joint statement that has been authorized by a notary.
According to the website for the Ministère de la Justice du Québec, the following conditions must be met to end a civil union:
“First, the spouses have settled all of the consequences of the dissolution in an agreement and, second, the interests of their children (if any) are not at stake. The statement and the agreement are supported by a notarized act. They have the same effect as a judgment of dissolution, from the date on which the notary receives them. If it is not possible to make a joint dissolution statement before a notary, the union must be dissolved by a court.”
Civil unions are automatically terminated by marriage, or when one of the members dies.
Department of Justice: http://www.justice.gc.ca/eng/fl-df/divorce/sd.html
Ontario Ministry of the Attorney General: http://www.attorneygeneral.jus.gov.on.ca/english/family/divorce/
JusticeBC website: http://www.justicebc.ca/en/fam/
Justice Québec website: http://www.justice.gouv.qc.ca/english/publications/generale/sep-div-a.htm